Justice and Security Bill [Lords]

Debate between John McDonnell and William Bain

Tuesday 18th December 2012 Commons Chamber

[Mr William Bain (Glasgow North East) (Lab)]

It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Robert Neill).

This debate has been about balance, and when the Minister responds I hope he will acknowledge the sense across the House that the Government are not yet in quite the right place regarding the balance between national security and the hard-won liberties of the individual. I hope that the Government will be open in Committee to amendments that make that balance more durable.

Justice systems across the United Kingdom have proven extremely adaptable to reforms such as the Human Rights Act 1998, which gave effect to the European convention on human rights in UK law. Such reforms provided what in some circumstances are universally applicable rights to people on UK territory, as well as recognising the growing importance of judicial review. Such proceedings can sometimes be inconvenient to Ministers and troublesome for the judiciary, but we should remember that the values of justice and fairness in our judicial system guarantee civil liberties and the rule of law.

The Bill deals with the conundrum of trying to strike a balance between the sometimes competing concerns and interests of the state and the individual, and it proposes the creation of closed material procedures in civil proceedings. As a national security measure that is reserved to Parliament under the devolution settlement, the Bill would apply to civil courts in Scotland. I know that the hon. Member for Perth and North Perthshire (Pete Wishart) read out some comments, and no doubt there will be discussions between this Government and the Scottish Government, but the Bill is clear that the measures would apply to civil courts in Scotland.

I welcome the amendments made in the other place that strengthen protection of the individual and, in the words of the noble Lord Pannick,

“help to ensure that, if we are to have CMPs, there are proper limits, proper controls, a proper balance and judicial discretion, and that CMPs are a last resort,”.—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1816.]

The Bill as originally presented in the other place would have permitted one party—the Government—to decide whether to use CMPs. Critically, if CMPs are to be introduced, it must be for the courts and not the Government to determine whether they should be used in any given case, and only as a last resort. Questions of fairness and relevancy of evidence are for the courts, not the Government, to determine, because one of the parties to a CMP should not be able to determine such matters on its own. It is therefore welcome that the Minister without Portfolio indicated that the Government are minded to accept the relevant amendment.

Having opposed the amendments with such vigour in the other place, I hope that the Government will now accept in their entirety all amendments accepted by their lordships. Although clause 6 as presented to this House appears to contain greater balance than the measure originally presented to the other place, I am concerned that such balance does not extend sufficiently to clause 7. In particular, the Bill does not create a statutory obligation on the courts to provide the gist of the argument to the excluded party, which is vital to their being able to advise adequately their special advocate. That protection has been sought by the Law Society and is crucial to ensure a better balance between the rights of the individual and the interests of the state.

Natural justice is a key principle of civil law across the United Kingdom, and we have heard comments from Judge Learned Hand. Perhaps I may remind the House of the dictum of Lord Chief Justice Hewart from the 1924 case of R v. Sussex Justices, ex parte McCarthy:

“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

One key rule respected by that principle is the right to a fair hearing, which is underpinned in law by article 6(1) of the European convention on human rights.

[John McDonnell]

May I point my hon. Friend to information given by Nicholas Blake QC—he is a special advocate—on what happens after a judgment is given in a Special Immigration Appeals Commission case? He says:

“If the special advocate thinks there is an error in law in the closed judgment, he gets permission to say, to pass a message out to the other team to say ‘I think you should be appealing, I can’t tell you why’…So there is a sort of open appeal. ‘We think there is something wrong but we don’t know what it is.’ And then the court goes into closed session”

to consider the matter. That is farce, not justice.